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Riva v. Ficco

United States District Court, D. Massachusetts

August 21, 2014

JAMES P. RIVA, II, Petitioner,
EDWARD FICCO, Respondent.


MARK L. WOLF, District Judge.


On October 28, 1981, petitioner James Riva was convicted of murder and other charges in Plymouth Superior Court. His conviction was affirmed on appeal. See Commonwealth v. Riva , 469 N.E.2d 1307 (Mass.App.Ct. 1984) ("Riva I"). Riva has filed four state court motions for a new trial and three prior federal petitions for habeas corpus. These motions and petitions were denied.

Riva filed the instant petition under 28 U.S.C. §2254 (the "Petition") on October 15, 2001. The Petition asserts that the representation provided to Riva by his trial counsel was constitutionally ineffective in several ways.

On March 28, 2007, the court denied the Petition. See Riva v. Ficco, Civ. No. 01-12061-MLW, 2007 WL 954771 (D. Mass. Mar. 28, 2007) ("Riva II"). The court determined that the Petition is barred by the one-year period of limitation that governs §2254 petitions. The court found that the period of limitation should not be equitably tolled because, during the relevant period of time, Riva had the mental capacity to pursue his legal affairs effectively.

On appeal, the First Circuit vacated the Order denying the Petition and remanded for further proceedings. See Riva v. Ficco , 615 F.3d 35 (1st Cir. 2010) ("Riva III"). The First Circuit found that the court's analysis of the factual record had been flawed, and provided guidance as to how this analysis should be conducted. In addition, the First Circuit instructed the court to address Riva's claim that his actual innocence excuses any untimeliness.

On remand, the parties have submitted additional briefing, affidavits, and documentary evidence. The court has considered these and prior submissions in light of the First Circuit's guidance and the applicable law, which has recently been updated by the Supreme Court. See McQuiggin v. Perkins , 133 S.Ct. 1924 (2013). For the reasons described in this Memorandum, the court is again finding that the Petition is barred by the applicable period of limitation. Accordingly, the Petition is being denied. The essence of the court's reasoning is as follows.

The Petition was filed more than four years after the applicable statutory deadline had elapsed. The period of limitation was only partially tolled by Riva's most recent state court motion for a new trial. In view of the updated record, examined in accordance with the First Circuit's instructions, Riva has not demonstrated that, during the relevant period of time, his ability to pursue legal redress was impaired to a degree that represented an extraordinary circumstance that stood in his way and prevented timely filing. Accordingly, equitable tolling of the period of limitation is not appropriate.

The court is considering Riva's claim of actual innocence even though this claim has not previously been presented to the state courts. However, Riva's claim of actual innocence does not satisfy the applicable standard defined by the Supreme Court. More specifically, Riva does not establish that it is more likely than not that no reasonable juror would have convicted him at trial. Riva's actual innocence claim does not, therefore, overcome his failure to comply with the period of limitation.


A. The Period of Limitation

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (the "AEDPA") came into effect. The AEDPA subjects petitions for a writ of habeas corpus to a one-year period of limitation. See 28 U.S.C. §2244(d). Petitioners whose convictions became final before the AEDPA's effective date were granted a one-year grace period, running through April 24, 1997, to file any habeas petitions. See Gaskins v. Duval , 183 F.3d 8, 9 (1st Cir. 1999); Rogers v. United Stated , 180 F.3d 349, 351-52 (1st Cir. 1999). The period of limitation is tolled by any "[t]ime during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. §2244(d)(2).

B. Equitable Tolling: In General

The AEDPA's period of limitation is subject to equitable tolling in appropriate circumstances. See Holland v. Florida , 560 U.S. 631 (2010). Equitable tolling is "the exception rather than the rule; resort to its prophylaxis is deemed justified only in extraordinary circumstances." Delaney v. Matesanz , 264 F.3d 7, 14 (1st Cir. 2001).

"A habeas petitioner bears the burden of establishing the basis for equitable tolling." Riva III , 615 F.3d at 39 (citing Holland , 560 U.S. at 649); Rios v. Mazzuca , 78 Fed.Appx. 742, 744 (2d Cir. 2005). In order to carry this burden, the petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)); see also Trapp v. Spencer , 479 F.3d 53, 61 (1st Cir. 2007) (listing factors relevant to the equitable tolling analysis).

C. Equitable Tolling: On Account of Mental Illness

In Riva II, this court noted that the First Circuit had not yet discussed whether and, if so, when a prisoner's mental illness justifies equitable tolling, but that other circuits "have permitted equitable tolling where the petitioner establishes that his mental illness was severe enough to preclude self-representation or effective communication with his counsel." Riva II, 2007 WL 954771, at *4 (collecting cases). "Conversely, " the court explained, "courts deny tolling based on mental capacity... where the record indicates that an individual was able to file legal motions and papers on his own behalf or to aid others in doing so." Id.

On appeal, the First Circuit confirmed that "mental illness can constitute an extraordinary circumstance, which may prevent a habeas petitioner from understanding and acting upon his legal rights and thereby equitably toll the AEDPA limitations period." Riva III , 615 F.3d at 40. The First Circuit agreed that mental illness does not automatically toll the AEDPA limitations period. Rather, it does so only if there is "some causal link between a petitioner's mental illness and his ability seasonably to file for habeas relief." Id . The First Circuit stated that:

[A] habeas petitioner satisfies the causation requirement if he can show that, during the relevant time frame, he suffered from a mental illness or impairment that so severely impaired his ability either effectively to pursue legal relief to his own behoof or, if represented, effectively to assist and communicate with counsel.

Id. The First Circuit cited several standards concerning equitable tolling due to mental illness formulated in previous cases. Notably, the Second Circuit has required that a petitioner "demonstrate that her particular disability constituted an extraordinary circumstance' severely impairing her ability to comply with the filing deadline, despite her diligent efforts to do so." Bolarinwa v. Williams , 593 F.3d 226, 232 (2d Cir. 2010); see also Hunter v. Ferrell , 587 F.3d 1304, 1308 (11th Cir. 2009); Laws v. Lamarque , 351 F.3d 919, 923 (9th Cir. 2003); Ata v. Scutt , 662 F.3d 736, 742 (6th Cir. 2011).

D. The Equitable Exception for Actual Innocence

The period of limitation that governs §2254 petitions may also be overcome by the "miscarriage of justice" or "actual innocence" doctrine. This doctrine creates an "equitable exception, " not "an extension of the time statutorily prescribed." McQuiggin , 133 S.Ct. at 1931. It provides "a gateway through which a habeas petitioner [may] have his otherwise barred constitutional claim considered on the merits." Barreto-Barreto v. United States , 551 F.3d 95, 102 (1st Cir. 2008) (quoting Schlup v. Delo , 513 U.S. 298, 315 (1995)). This "gateway" is designed to permit a habeas petition to be examined on the merits if a petitioner has "raised sufficient doubt about [his] guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error." Schlup , 513 U.S. at 315.

"Actual innocence" means "factual innocence, not mere legal insufficiency." Bousley v. United States , 523 U.S. 614, 623 (1998). An actual innocence claim must be founded on "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup , 513 U.S. at 324; House v. Bell , 547 U.S. 518, 537 (2006). The actual innocence exception "applies to a severely confined category: cases in which new evidence shows it is more likely than not that no reasonable juror would have convicted [the petitioner].'" McQuiggin , 133 S.Ct. at 1933 (quoting Schlup , 513 U.S. at 329); House v. Bell , 547 U.S. 518, 536-37 (2006); Gunter v. Maloney , 291 F.3d 74, 83 (1st Cir. 2002). Actual innocence is "rare' and [is] only... applied in the extraordinary case.'" Schlup , 513 U.S. at 321 (quoting Murray v. Carrier , 477 U.S. 478, 494 (1986)); Awon v. United States , 308 F.3d 133, 143 (1st Cir. 2002).

The foregoing standard "requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup , 513 U.S. at 329. The court must make its determination "in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial." Id. at 328 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)).


A. The Crime and the Trial

At about 3:00 p.m. on April 10, 1980, Riva visited his grandmother, Carmen Lopez, at her home in Marshfield. Riva and his grandmother had recently argued about Riva's long hair and lack of employment. After doing some washing for his grandmother, Riva went to the cellar of her house and brought up a gun and gold-painted bullets that he had previously hidden there. Riva's grandmother saw the gun and threw a glass at him. He shot her at least twice and stabbed her. He then carried her into her bedroom, poured dry gas over her, and set her on fire. He left the house and drove to pick up his father in Braintree.

Police recovered a grey metal box from Ms. Lopez's home. The box contained papers belonging to Riva and some gold-painted bullets. Riva made persistent efforts, on the day after the shooting, to retrieve the box from the police. He confronted Lieutenant James Lopes of the Marshfield police about this matter and eventually struck him.

Riva was arrested and indicted for murder, arson, and assault and battery on a police officer. A Superior Court judge initially found Riva incompetent to stand trial. This determination was subsequently reversed by Judge Peter F. Brady, who presided over Riva's trial.

Riva was tried by jury in Plymouth County Superior Court in October, 1981. Evidence was submitted at trial indicating that Riva had exhibited troubling behavior from a young age: At four, he had an altercation with his father and tried to call the police and, when that was prevented, attempted to injure his father. When hospitalized with pneumonia and later in kindergarten, he drew pictures of bleeding human anatomies and of people being shot. At thirteen he started drawing pictures of vampires and of women with puncture wounds dripping blood. He periodically began eating food with the appearance of blood (mixtures of oil, ketchup, parts of animals).

Riva I , 469 N.E.2d at 1309 n.5. While he was incarcerated, Riva admitted the crimes for which he was tried to his mother, describing the background to them as follows:

Riva said that he had "been a vampire for more than four years, that was when the voice came out of the sun in the marsh and told me I had to be a vampire, and I have had to drink blood for a long time...." He claimed to have "been talking to the devil for a long time."... Riva went on to say that, on the morning of the fire, "the voice told him... that was the day he was going to die if he didn't kill his grandmother, and he said he fought with the voice all day, he didn't want to."

Riva I , 469 N.E.2d at 1308 n.3; see also id. at 1309 n.4. Riva's defense at trial was that he lacked criminal responsibility by reason of insanity. He offered considerable expert evidence in support of this claim:

Four psychiatrists of substantial experience, called as expert witnesses by Riva, testified that Riva suffered from serious mental illness. These psychiatrists (as well as some staff psychiatrists who examined Riva at Bridgewater State Hospital and elsewhere, but who did not testify at trial) concluded (with some variations in their reasons) that Riva, on April 10, 1980, lacked criminal responsibility.... No one of them was shaken in his conclusions by cross-examination.
* * * *
One such expert witness thought Riva, on April 10, 1980, suffered from a chronic form of schizophrenia, which caused him to lack substantial capacity to conform his behavior to the requirements of law, but that he "did have the capacity to understand the wrongfulness of his act." Two of these doctors expressed the view that Riva suffered from paranoid schizophrenia on the date of the killing. One doctor thought Riva was a "manic depressive, " whose "conduct was influenced by delusions and possibly hallucinations."

Riva I , 469 N.E.2d at 1309-10 & n.8 (1984). An expert for the prosecution, Dr. Martin Kelly, opined that Riva suffered from borderline personality disorder, and that he had been criminally responsible for the murder. Id. at 1310 n.11.

On October 28, 1981, the jury found Riva guilty of second-degree murder, arson, and assault and battery on a police officer. He was sentenced to life in prison.

B. Following the Trial: 1981-1995

Four days after he was sentenced, Riva was committed to Bridgewater State Hospital. He remained at Bridgewater until January 24, 1989. He was then transferred to the general prison population. While in the general population, Riva assaulted a correctional officer under a paranoid delusion that the officer had been draining fluid from his spine. See Pet'r's Opp'n to Resp.'s Mot. to Dismiss Ex. B, at 7.[1] On September 6, 1990, Riva was sent back to Bridgewater, where he continued to suffer from psychotic symptoms. At times, he was preoccupied with the delusion that he needed to consume human flesh. He was treated with several medications, including Trilafon and Risperdal. Id. at 2; Brower 2006 Aff. ¶¶6-7.

Soon after he was convicted, Riva began to pursue a series of state and federal post-conviction proceedings. Following the trial, Riva's trial counsel, John Spinale, Esq., filed a motion for a new trial and a motion to revise or revoke Riva's sentence. The trial court denied these motions on May 26, 1982. Newly appointed counsel, Willie Davis, Esq., filed an appeal from Riva's conviction and from the trial court's denial of Riva's post-conviction motions. The Massachusetts Appeals Court affirmed. See Riva I. Riva filed an application for leave to obtain further appellate review before the SJC.[2] This application was denied. See 474 N.E.2d 181 (1985) (table).

In May 1987, acting pro se, Riva filed a second state court motion for a new trial.[3] Before any action was taken on this motion, Riva turned to federal court, filing his first federal habeas petition on July 14, 1987. See Riva v. Noonan, Civ. No. 87-1800-T. The petition was dismissed by Judge Joseph L. Tauro, who found, adopting the Report and Recommendation of Magistrate Judge Lawrence P. Cohen, that three of Riva's claims were unexhausted and that a fourth claim was unmeritorious. See Civ. No. 87-1800-T, Oct. 7, 1987 Order (adopting Aug. 10, 1987 Report and Recommendation).[4]

Riva returned to state court, filing a new version of his second motion for a new trial, with an accompanying memorandum of law, on June 2, 1988.[5] The trial court appointed new counsel, Dana Alan Curhan, Esq., to represent Riva. Mr. Curhan filed an amended motion for a new trial on July 19, 1990. The motion was denied by the trial court on February 28, 1991. Curhan filed an appeal to the Massachusetts Appeals Court, which affirmed. See 615 N.E.2d 606 (1993) (table). An application for leave to obtain further appellate review was denied. See 618 N.E.2d 1364 (1993) (table).

On August 2, 1993, pro se, Riva filed a second motion to revise or revoke his sentence.[6] This motion lay dormant for three years. During this time, on May 11, 1995, Riva filed a third motion for a new trial. He was now represented by Richard Passalacqua, Esq. Riva wrote at least two letters to Passalacqua, commenting on the motion that Passalacqua had prepared and, subsequently, on the Commonwealth's opposition to Passalacqua's motion.[7] The third motion for a new trial was denied on August 7, 1995. Pro se, Riva filed a notice of appeal and an application for direct appellate review by the SJC. His appeal was dismissed for lack of prosecution on February 23, 1996. The state court docket does not reflect action on Riva's application for direct appellate review.

C. The Tolling Period: 1996-1999

For reasons explained below, Riva's condition and actions during the period from 1996 to 1999 require particularly close analysis. Riva remained at Bridgewater during this period. He suffered setbacks and troublesome episodes, including paranoid delusions, thoughts about cannibalism, preoccupations with sadistic behavior, paranoia, and heightened vigilance. See Packer Remand Aff. ¶7; Pet'r's Remand Mem. at 10-13 (quoting quoting Resp.'s Addendum at 104-07, 193-94); Resp.'s Addendum at 45-49, 59-62, 203, 208-09.

However, over the course of his hospitalization, Riva had "a slow but gradual improvement in level of psychosis and agitation." Pet'r's Opp'n to Resp.'s Mot. to Dismiss Ex. B, at 1. A report prepared by Bridgewater staff in August, 1999 states that: "For the past twenty-four months [Riva's] behavior has been essentially non-problematical. He has become more organized and future oriented." Id. at 11. From 1996 through 1999, according to Riva's expert witness, Riva's "level of functioning continued to improve overall and he did not display acute psychotic symptoms or become grossly disorganized." Brower Remand Aff. ¶10. In fact, during this time Riva "act[ed] as a lawyer for other patients, researching and doing clerical work for them." Packer Remand Aff. ¶18 (quoting Bridgewater reports). During the first half of 1999, Riva began taking a new medication, Zyprexa. In August of that year, he was again assigned to the general prison population.

Riva continued to pursue his case during the period 1996-1999. After the Massachusetts Appeals Court dismissed his appeal from the denial of his third motion for a new trial, Riva turned his attention back to his second motion to revise or revoke his sentence, which he had filed on August 2, 1993 but which had not yet been acted on. On September 30, 1996, Riva wrote a letter to Judge Brady, pointing out that his motion was still pending. The Commonwealth then moved to quash Riva's motion, and Riva, still unrepresented, filed an opposition to the motion to quash.[8] On October 28, 1996, Judge Brady denied Riva's motion to revise or revoke, finding that he had no jurisdiction to consider it.

On February 1, 1996, Riva returned to federal court and filed a second pro se habeas petition, which was assigned to this court. See Riva v. Dubois, Civ. No. 96-10273-MLW. This petition was prepared on a standard form for habeas petitions, but Riva attached to his petition: several exhibits, including an informative sketch of the layout of the trial courtroom; a motion to proceed in forma pauperis; an affidavit in support of the motion to proceed in forma pauperis; and a 10-page typewritten memorandum of law. Riva stated in his memorandum that "[t]he authorship of this appeal [sic] is possible through the use of 32 milligrams of Perphenazine per day which keeps the applicant's symptoms in remission and allows him to think clearly." Civ. No. 96-10273-MLW, Applicant's Mem. of Law at 3.[9]

Riva's 1996 habeas petition was not served on the respondent, and no answer was filed. On May 24, 1996, Riva mailed a letter to the clerk's office stating that the respondent had defaulted.[10] One month later, he filed a formal motion for entry of default. However, on July 8, 1996, the case was dismissed on the grounds that Riva had not filed a return of service. Riva moved for reconsideration, arguing correctly that, as reflected in a prior Order issued in that proceeding, the clerk is required to effect service in habeas cases. The court agreed, reopened the case, and instructed the clerk to serve the respondent. See Civ. No. 96-10273-MLW, Aug. 8, 1996 Order. Subsequently, Riva moved to dismiss his petition without prejudice, stating that some of the grounds for the petition may have been unexhausted. The court allowed the motion and dismissed the petition without prejudice on February 21, 1997.

On January 6, 1998, a third habeas petition was filed on Riva's behalf by Barbara Smith, Esq. See Riva v. Nelson, Civ. No. 98-10008-MLW.[11] On December 29, 1998, this petition was transferred to the First Circuit on the grounds that it was a "second or successive" habeas petition. The First Circuit ordered Riva to file an application for leave to file a second or successive petition.[12] On October 28, 1999, after Riva had failed to take further action, the First Circuit dismissed his case for failure to prosecute.

While his third habeas petition was before the First Circuit, Riva again returned to state court. On March 17, 1999, he filed his fourth and last motion for a new trial.[13] He was not represented. This motion was denied on December 13, 1999. Riva filed an appeal, which was denied, see 752 N.E.2d 242 (2001) (table), followed by an application for leave to obtain further appellate review, which was denied as well, see 752 N.E.2d 240 (2001) (table).

D. Proceedings on the Instant Petition

The instant Petition was filed, pro se, on October 15, 2001. Riva makes four claims in the Petition, each premised on a theory of ineffective assistance of counsel. He argues that his trial counsel failed: (1) to object to Riva's forced medication during trial; (2) to object to the trial court's restriction of Riva to the prisoner's dock during trial; (3) to prepare the expert defense witnesses adequately; and (4) to challenge material misrepresentations by the prosecution's expert witness, Dr. Kelly. Initially, Riva raised two additional issues: trial counsel's failure to request a manslaughter instruction, and his failure to object to the trial ...

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